AvalonBay suffers setback in Stratford fight

Published 7:37 pm, Monday, August 31, 2009

STRATFORD -- AvalonBay Communities has often won approval to build affordable housing projects around the state despite strong opposition.

But it continues to find Stratford one of its toughest opponents.

In the latest twist in the developer's nine-year battle to construct an affordable housing complex on Cutspring Road, a Superior Court judge has rejected AvalonBay's appeal to build a scaled-down, 130-unit complex, agreeing with the town it would pose "major safety and public health risks because emergency access vehicles, such as firetrucks, would not make it under a Merritt Parkway underpass on Cutspring Road" to the proposed site.

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"This is a major victory for the town and zoning commission, which has held firm in its belief the project would pose a major threat to public health and safety," said Zoning Commission Chairman Christopher Silhavey, pointing out the panel rejected an original plan of 160 units in 2001, and two revised proposals since.

Planning and Zoning Administrator Gary Lorentson advised the commission of the judge's decision during a meeting Tuesday night in Town Hall. "It's great news, but I don't think it's quite over yet, not with AvalonBay," said Commissioner Adam Bonoff, a staunch opponent of the project.

AvalonBay filed its latest appeal last September, claiming the Zoning Commission's reasons for denial last August "do not satisfy its burden under (remand orders issued) by this court in July 2004."

But Superior Court Judge Henry S. Cohn in New Britain dismissed the entire appeal, which upholds the Zoning Commission's decision and places the burden on AvalonBay to appeal again, which is likely.

"While the plaintiff made numerous changes in its 2008 site plan, the height of the development is three stories on 17 of its 20 sides, and higher still on the remaining three sides fashioned with dormers," Cohn states in his Aug. 13 ruling. "The present matter presents two irreconcilable realities -- the size and height of the development mandates aerial firetruck response and some mutual-aid aerial firetrucks will not be able to proceed through the underpass without driving down the center of the road.

"Given the low clearance, firetrucks are likely to proceed slowly while moving through the archway," Cohn states. "Response time will suffer as a result. The likelihood of collision with oncoming traffic increases as a firetruck moves to the center lane. Even without oncoming traffic, the risk of misjudging the clearance and colliding with the top of the archway is still present. Either scenario could result in blockage of the underpass."

The ruling was in agreement with the commission's stated denial that "considering the height" of proposed three- and four-story-high buildings, "it is essential that fire ladder trucks be able to reach the site in a timely manner."

During the public hearing last year Town Councilman Joseph Kubic, R-9, told the commission: "I have reviewed the plans and concluded that what we have here is a death trap -- a tragedy waiting to happen."

The judge did reject two of the commission's other reasons for denying the project, which include the panel's claim that secondary access for emergency vehicles to the rear of the project along Circle Drive "is far too narrow," and that the development would have a negative impact on wetlands.

"We believe we took two steps forward and one step back," said AvalonBay's lawyer, Timothy Hollister. "We have advised our clients to appeal the one area the judge cited for denying the appeal, concerning the Merritt Parkway underpass, and believe we can win by taking this to the Appellate Court level. We don't believe it's over yet."